Clarence A. FINCH, Petitioner,
STATE DEPARTMENT OF PUBLIC WELFARE of the State of Arizona; Arizona State Board of Public Welfare; Ben Projan, Robert C. Bohannan, Jr., Alf B. Claridge, David M. Solomon, and Maria L. Urquides, Members of the State Board of Public Welfare, and Wayne B. Warrington, Commissioner of the Arizona State Department of Public Welfare, Respondents.
[80 Ariz. 227] Gust, Rosenfeld, Divelbess & Robinette, Phoenix, for petitioner.
Robert Morrison, Atty. Gen., and Ragan & Rehnquist, Phoenix, Sp. Counsel, for respondents.
LA PRADE, Chief Justice.
At the instance of petitioner, Clarence A. Finch, this court issued an alternative writ of mandamus directed to respondents compelling them to reinstate him to his position as Director of Public Welfare of Maricopa County, from which he had been involuntarily retired, or show cause for not so doing. By their response and in their briefs respondents have contended that they acted within their lawful authority in retiring petitioner and for that reason the writ should be quashed.
The uncontroverted facts are as follows: Finch was the Director of Public Welfare of Maricopa County from 1937 until September 30, 1955. On August 20, 1955 petitioner attained the age of sixty-five years. On August 3, 1955 Finch was advised by Wayne B. Warrington, Commissioner of
the Arizona State Department of Public Welfare, that he would be retired as of September 30, 1955, pursuant to the established policy of that department, retiring employees upon attaining the age of sixty-[80 Ariz. 228] five years. Petitioner appealed this decision to the State of Arizona Merit System Council which, after a hearing, made and submitted to the Board of Public Welfare its findings and recommendation to the effect that the Board had no authority to compel petitioner to retire for the reason stated. The Board apparently considered said findings and recommendation, but, believing it had such authority, refused to reverse its decision to retire petitioner.
The sole question before this tribunal is whether the State Department of Public Welfare has the authority to compel its employees to retire before they reach the age of seventy, which age is the compulsory retirement age as set by the Public Employees' Retirement System Act (hereinafter referred to as the 'Retirement Act'), Sections 12-837 to 12-861, 1954 Supp.A.C.A.1939, Section 38-741 et seq., A.R.S.1956. If the authority existed then the Board's action was lawful and the writ should be quashed; if not, it was illegal and a peremptory writ should issue.
The correct determination depends upon the construction to be given to Section 12-844(e) of the Retirement Act (A.R.S. § 38-759, subd. F), as well as the amendment of Section 70-108(d), A.C.A.1939 (A.R.S. § 46-114, subd. A, par. 5), dealing with the Department of Public Welfare. Section 12-844(e) in part reads as follows:
'All state officers and employees and officers and employees who are declared to be subject to chapter 128, Laws of 1953 (Sections 12-837-12-861), by the legislature, * * * who shall have attained or exceeded the age of seventy years on and after July 1, 1954, shall be compulsorily retired and shall not be compensated for state service nor be paid retirement benefits of any kind except as provided by chapter 128, Laws of 1953.'
Section 70-108(d) before amendment in part read as follows:
'Personnel.-The board shall have the power and it shall be its duty to:
* * *
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'(d) * * * provide for a fair and impartial system of separation from service through resignation, retirement, or removal. * * *' (Emphasis supplied.)
After the amendment deleting the word 'retirement' the above section was renumbered as Section 70-109(a)(4) ...